A Brief Overview of Second Amendment Law

One reason I write these posts is so that my readers can make informed political decisions. Although this is a law blog, law is intertwined with policy, and regardless of your beliefs, you need to work within the system to effect real change. What follows is not necessarily the policy I want or the law I think best, but an explanation of the law today. Guns are one of the dominant subjects in our national debate, and it is important to understand the current legal framework. My purpose today is to write a little about the Second Amendment today, addressing the leading Supreme Court case on the subject (D.C. v. Heller, 554 U.S. 570 (2008)).

Heller is significant in part because there is not a large body of case-law to draw from; legally we are in relatively undiscovered country. The facts are simple: the District of Columbia prohibited possession of handguns, and required that any gun kept in the home be disassembled or bound by a trigger lock. A DC police officer sued for the right to have a handgun in his own home. He lost at the trial court level, and the case was appealed up to the Supreme Court. In Heller, Justice Scalia spends many pages providing a broad review of the meaning of the Second Amendment at the time of its drafting, and then discusses case-law and legislation pre-and post-ratification of the Constitution, and pre- and post-Civil War. It’s an interesting, well-cited read, which both proponents and opponents of gun legislature should review. For now, I’ll cut to the chase: The Court held that DC’s ban on handguns (and requiring the gun to be functionally inoperable,) violates the Second Amendment. In other words, the Court held that the Second Amendment established a personal right to bear arms.

That said, the Second Amendment has its limits:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose … For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues … nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.”

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right. Heller at 626 (internal citations and footnotes omitted).

In sum, Heller held that there is an individual right to own a firearm in the home, and the government cannot require one to disable the firearm to the point where it may not be used to defend oneself. The Court itself notes that since there is so little judicial precedent on the subject, Heller does not seek to answer all Second Amendment questions, and as with more established areas of Constitutional law, the details will be worked out over time.

This post is not intended to lend support for any one political position regarding firearms and the Second Amendment. Instead, I hope that those arguing policy ground themselves in an accurate understanding of current law. Law is policy in action, and politics is process. We know that the government may not outright ban individual ownership of all firearms, and we also know that the Constitution does not demand that any person be able to acquire any weapon at any time.